Bava Kamma 63b (סג:) — the Talmud in English

One who presents the claim of a thief

concerning a lost item,

if one finds a lost item and claims that it was stolen from him, while it is found in his possession, he

pays double payment,

because

it is stated: “

Concerning every lost item about which he says.”

a. The Gemara proceeds to explain additional details of the laws of “one who presents the claim of a thief,” and explains from where they are derived.

b. There are two liabilities incurred by one who lies under oath concerning a deposit entrusted to him:

The first: “one who presents the claim of a thief,” who becomes liable to pay double, as derived from the verses mentioned above.

The second: “one who denies a deposit,” which is the section of “the oath of the deposit,” as it is stated [Leviticus 5]:

“When a person sins, committing treachery against the Lord, and denies to his fellow concerning a deposit, or concerning a pledge, or concerning robbery, or has extorted his fellow; or he found a lost item and denied it, and swore falsely concerning one of all these things that a person may do, thereby sinning. And it shall be, when he sins and becomes guilty, that he shall return the stolen item that he stole, or the extorted property that he extorted, or the deposit that was deposited with him, or the lost item that he found; or anything concerning which he swore falsely, he shall pay it in its principal [the principal sum, which is the head of the money] and add its fifth to it, giving it to the one to whom it belongs [to the one who owns the principal sum] on the day of his guilt. And he shall bring his guilt-offering to the Lord, an unblemished ram from the flock, according to your valuation for a guilt-offering, to the priest”—and this is called: “the guilt-offering for misappropriations.”

This section includes anyone who falsely denies to his fellow money that he owes him, where the denial is made under oath. This also includes “one who presents the claim of a thief,” when the conditions that make him liable for a fifth and a guilt-offering under the law of “the oath of the deposit” have been fulfilled.

c. The law of “the oath of the deposit” with regard to the fifth and the guilt-offering differs from the law of “one who presents the claim of a thief” with regard to the double payment. “One who presents the claim of a thief” becomes liable to pay double only when witnesses come and testify: “This man swore a false oath, and the deposit is in his possession.” But if he himself admits it, he is not liable, because the liability to pay double is a fine, and the principle is: “One who admits liability to a fine is exempt.”

But with regard to the oath of the deposit, the testimony of witnesses is not sufficient; an admission is required. Through the admission he becomes liable even when no witnesses have come. This law is derived from the wording of the verse [Numbers 5], where the section of the oath of the deposit is repeated, and it is stated there: “When a man or woman commits any of the sins of a person, thereby committing treachery against the Lord, and that person becomes guilty, they shall confess the sin that they committed, and he shall return his guilt [the principal sum] in its principal amount, and add its fifth to it, giving it to the one to whom he is liable [to whom he owes it]. But if the man has no redeemer [relative] to whom to return the guilt [for example, he robbed a convert who then died], the guilt that is returned to the Lord shall belong to the priest [he shall pay it to the priests], besides the ram of the atonements with which he shall make atonement for him [this is the guilt-offering for the oath of the deposit].” Thus, the Torah renders a person liable for a guilt-offering only when “they shall confess” has been fulfilled, meaning that he admitted it; and wherever there is no guilt-offering, there is no fifth.

d. The Mishna before us explains the distinction between these liabilities.

We learned there

later, in the chapter “One Who Robs Wood”:

One who says to his fellow: “

Where is my deposit

that I deposited with you?” And

the bailee said to him:

the bailee: “

It was lost

your deposit.” -

The depositor then said to him: “

I adjure you

concerning your statement,” and

he said—

the bailee—“

Amen,”

which is equivalent to swearing that his deposit was lost -

and witnesses testify against him that he consumed it,

but he himself did not admit that he had sworn falsely, he

pays the principal

alone. For although he denied the deposit under oath, he does not become liable to pay “the principal, a fifth, and a guilt-offering” under the section of “the oath of the deposit,” because the Torah rendered him liable for the additional fifth and the guilt-offering only when he admitted it.

But if

he admitted on his own authority,

he

pays the principal, a fifth, and a guilt-offering

under the law of “the oath of the deposit.”

But if he said to him: “

Where is my deposit,”

and

he said to him: “

It was stolen,” “

I adjure you,”

and he said: “

Amen,”

his law is different, for he is “one who presents the claim of a thief,” whom the Torah rendered liable to pay double, and his law is as follows:

and witnesses testify against him that he stole it,

he

pays double payment

according to the law of “one who presents the claim of a thief,” and he does not pay under the law of “the oath of the deposit,” because he did not admit on his own authority.

But if

he admitted on his own authority,

he

pays the principal, a fifth, and a guilt-offering

under the law of “the oath of the deposit,” but he is not liable to pay double, because “one who admits liability to a fine is exempt.”

In any event, it teaches

in this Mishna:

a.

With regard to one who presents the claim of a thief, he pays double payment.

b.

But with regard to one who presents the claim that it was lost, he does not pay double payment,

and therefore the Mishna exempted him from double payment even when witnesses came.

c.

Even one who presents the claim of a thief—

it is specifically when he makes the claim under oath that he pays double payment; but when he does not make it under oath, he does not pay double payment.

And all this:

from where are these matters derived,

from where is this required?

As the Sages taught:

It is written: “When a man gives money or vessels to his fellow to guard, and it is stolen from the man’s house, if the thief is found, he shall pay double. If the thief is not found, the owner of the house shall approach the Divine Court, to determine whether he extended his hand to his fellow’s property. Concerning every matter of transgression, concerning an ox, concerning a donkey, concerning a sheep, concerning a garment, concerning every lost item, about which he says, ‘This is it,’ the matter of both of them shall come before the Divine Court; whoever the Divine Court finds liable shall pay double to his fellow.”

“

If the thief is found”

If the thief is found”—

the verse is speaking of one who presents the claim of a thief,

as you say that the verse is speaking of one who presents the claim of a thief, or perhaps it is speaking only of the thief himself,

and the Torah said as follows: If the thief is found, as the bailee actually claimed, then that thief shall pay double -

I do not say so, because:

When

the verse

says: “

If the thief is not found … and he shall approach … concerning which he says, ‘This is it’ … he shall pay double to his fellow,”

it follows that this section comes to teach the law of “one who presents the claim of a thief,” and

it follows

that necessarily the entire section

is speaking of one who presents the claim of a thief

to render him liable to double payment;

the verse is speaking

of this, for it is an established principle: “One verse comes and teaches about the other.” And it was taught in another beraita,

and we learned another beraita that disagrees with the previous beraita:

and we learned another tannaitic source that disagrees with the previous beraita: "

“

If the thief is found, he shall pay double”—

the verse is speaking of the thief himself.

You say that it is speaking of the thief himself, or perhaps it is speaking only of one who presents the claim of a thief?

I do not say so, because:

When it says: “

If the thief is not found,”

and the Torah renders him liable to double payment,

one who presents the claim of a thief

who is already liable to pay double

has already been stated. What, then, do I establish

“

“

If the thief is found, he shall pay double”?

The verse is speaking of the thief himself,

for otherwise, why would it mention the liability to pay double for one who presents the claim of a thief twice?

According to everyone—

both the tanna of the first beraita and the tanna of the second beraita—

at any rate: “

If the thief is not found”

is written concerning one who presents the claim of a thief!

What is the indication,

how is it inferred from here that one who presents the claim of a thief pays double!?

He said—

he explained—

Rava:

The verse says as follows:

If “the thief” is not found,

that is, if he is not found

as he said:

“The deposit was stolen,”

but it was he himself who stole it,

then

he shall pay double.

We have thus learned that one who presents the claim of a thief pays double.

And from where do we know that he becomes liable only under oath

to pay double?

As it was taught: “

The owner of the house shall approach the Divine Court”—

for an oath,

and this teaches that a gratuitous bailee—for this is the case discussed by the section—who claims “it was stolen” is exempt through an oath; and it also teaches that he becomes liable to pay double only through an oath.

You say

that he shall approach

for an oath, or perhaps it means only

that he shall approach

for judgment,

in order to pay, teaching you that a gratuitous bailee who claims that it was stolen is liable to pay the principal to the owners?

I do not say so, because through a gzera shava I can learn that this approach is for an oath, for:

It is stated “

unauthorized use”

below,

in the section concerning a paid bailee, as it is written: “The oath of the Lord shall be between them, whether he did not extend his hand to his fellow’s property” -

and it is stated “

unauthorized use”

above—

in our section, which concerns a gratuitous bailee—as it is written: “The owner of the house shall approach the Divine Court, whether he did not extend his hand to his fellow’s property.”

Just as there,

with regard to a paid bailee,

for an oath,

as the Torah says: “The oath of the Lord shall be between them”;

so too here,

with regard to a gratuitous bailee, this approach

is for an oath

.

And we raise an objection:

Granted, according to the one who says: one

of the verses is speaking

of a thief, and one

of them

of one who presents the claim of a thief:

This is why two verses are written [namely,

why two verses stating “he shall pay double” were written].

But according to the one who says: both [the two verses requiring double payment] are concerned

with one who presents the claim of a thief,

if so,

why do I need two verses [namely,

two verses stating that “he shall pay double”]

!?

They said—

the scholars of the academy:

One

of the verses comes

to exclude

one who claims

that it was lost, who swore and it was found in his possession, from paying double.

takes an oath, and the item is found in his possession: he does not pay double.

We have thus learned the source for the rule that one who presents the claim that an item was lost does not pay double.

And

we object:

According to the one who says: one verse concerns a thief and one concerns one who presents the claim of a thief, and no verse is superfluous,

if so,

from where does he derive the exclusion of the claim that it was lost!?

And we answer:

From

the superfluous wording of the verse, “

the thief of the thief.”

It could have said, “If a thief is not found,” but it says, “If the thief is not found,” implying the particular thief, to teach that he is liable to pay double only when presenting the claim of a thief, but not when presenting the claim that it was lost.

And

we object:

According to the one who says: both verses concern one who presents the claim of a

thief,

and it follows

that

the verse has already

excluded

the claim that an item was

lost from one of the superfluous verses, if so, what does he expound from “

the thief of the thief”

!?

He can say to you: It is needed for the teaching of Rabbi Hiyya bar Abba in the name of Rabbi Yohanan!

For Rabbi Hiyya bar Abba said in the name of Rabbi Yohanan: One who presents the claim of a thief concerning a deposit,

he

pays double payment,

and if he

slaughters or sells

the deposit afterward, he

pays a fourfold or fivefold payment;

this law is derived from “the thief of the thief,” which is superfluous and comes to teach that his law is like that of the thief himself.

And we explain:

According to the one who says: one verse concerns a thief and one concerns one who presents the claim of a thief, he uses

“the thief of the thief”

to derive [namely,

he uses it to teach]

the exclusion of the claim that it was lost -

if so,

Rabbi Hiyya bar Abba—

who derives liability for slaughter and sale in the case of one who presents the claim of a thief—

from where does he derive it!?

He can say to you: It is an analogy,

for the Torah juxtaposed a thief with “one who presents the claim of a thief.” The first verse concerns a thief, and the verse immediately following it concerns one who presents the claim of a thief, and they are learned from one another: Just as a thief pays a fourfold or fivefold payment if he slaughters his theft, so too the bailee becomes liable to pay a fourfold or fivefold payment for the deposit if he slaughters it and sells it after presenting the claim of a thief concerning it -

and

therefore

one may not refute [namely,

raise an objection]

against the analogy,

and you cannot challenge it by saying: What is true of a thief is that he becomes liable even without an oath; can you say the same concerning “one who presents the claim of a thief,” who becomes liable only through an oath?

Granted, according to the one who says: one

of the verses requiring double payment concerns

the thief

himself,

and one

of them concerns

“one who presents the claim of a thief”—

one who makes a claim of theft”—

then it is

proper,

for we have a source for both of these liabilities to pay double!

But according to the one who says: both concern

“one who presents the claim of a thief,”

if so,

the thief himself,

who pays double,

from where does he derive it [namely,

from where is it learned]?

And should you say that it can be derived by a kal va-chomer from

“one who presents the claim of a thief” [namely,

perhaps it is learned by a kal va-chomer]—

This cannot be said, because “

it is sufficient for what is derived from the inference [namely,

it is sufficient for what is learned by a kal va-chomer]

to be like the subject from which it is derived [namely,

it must not be more stringent than the source].” We must therefore say:

Just as there,

with regard to one who presents the claim of a thief, the Torah rendered him liable only

under an oath, so too here,

with regard to the thief himself, we should render him liable to pay double only

under an oath.

And we answer:

A third section concerning double payments [and it is the first in the Torah] was stated [Exodus 22:36]: “When a man steals an ox or a sheep and slaughters it or sells it. If the thief is found breaking in. If the sun has risen over him. If the stolen item is surely found in his possession [because he did not sell it], from an ox to a donkey to a live sheep [because he did not slaughter them], he shall pay double.”

He derives it

the law that the thief himself pays double

from the tanna of the school of Hezekiah!

That is, according to the tanna who says that both verses concern “one who presents the claim of a thief,” the thief himself is learned from the section of “if the stolen item is surely found,” which concerns the thief himself. However, from the explicit wording of that section we would know only that one who steals animals pays double. Through the exposition of the tanna of the school of Hezekiah concerning that section, we learn that anyone who steals a movable object whose intrinsic value is money is liable to pay double for it when he steals it.

For the tanna of the school of Hezekiah taught:

The verse should have said

in the section of “if the stolen item is surely found”:

“an ox and a theft.”

And everything would be included.

That is, it would have been sufficient had it said, “If the stolen item is surely found in his possession,” which is a general statement, and then included again as a general statement,

specifying only “ox.” We would then know, through the principle of “generalization, specification, and generalization,” that every theft resembling the specification—something movable and having intrinsic monetary value—renders the thief liable to pay double. Why, then, did the Torah need to specify further “donkey and sheep”?

If

the verse had said

so,

then

I would have said: Just as the specification—

an ox—

is explicitly

a creature that

is fit for the altar,

so too every stolen item that

is fit for the altar,

the thief is liable to pay double for it. I would not have said that he is liable to pay double for every movable object whose intrinsic value is money. But now that the Torah also states “sheep,” I learn that one is liable even for something that is not fit for the altar. How so? [After all, a sheep too is fit for the altar]:

for

what do you have to bring

and to include by the principle of “a generalization, a specification, and a generalization” [if “sheep” had not been stated explicitly], then only “

sheep

” and those similar to it that are fit for the altar—